Case Blurb; Cumis Ins. Co., Inc.; Production of Metadata from Various Systems

[Producing Party's Representative] states that [Producing Party] Cumis stores information in three electronic formats: APEX files, Lotus Notes (email), and Microsoft Office files. She affirmatively states that APEX was “custom created” for use by CUMIS for policy and claims management, and does not generate metadata. Thus, with regard to APEX files, the issue is moot: Defendant cannot produce what does not exist.

With regard to Lotus Notes email messages, [Producing Party's Rep] states that they “contain only a small amount of metadata. This includes the date and time of the creation of the message file, as well as a long string of characters that serves as a unique identifier for each message.” She further states that she has reviewed the screen-shots of the email message produced for Plaintiff, and that “[a]ll metadata pertaining to the individual messages, except for the unique identifier referred to in the above paragraph is visible on these printouts.” Hence, except for an “identifier” that would have no evidentiary value, the relevant metadata (such as date and time of creation) appears in the PDF copy. Were this not the case, there would be value in producing the metadata. However, since the PDF copies contain all the relevant information that Plaintiff would otherwise glean from the metadata, I agree with Defendant that producing the metadata for the emails would be unduly burdensome.

[Producing Party Rep] states that in the ordinary course of business, documents generated by Microsoft Office are kept in paper form. (This is the form which Defendant has produced to Plaintiff). She states further that producing the metadata for these documents would consume substantial resources. The substantive information contained in Microsoft Office documents speaks for itself, and is reflected in the discovery that has already been provided to Plaintiff. Given the admonitions of Williams v. Sprint, Wyeth, and Kentucky Speedway, supra, regarding the relative lack of worth of metadata, and the lack of any showing by Plaintiff that the metadata underlying Microsoft Office documents would be likely to lead to the discovery of relevant evidence, I agree with Defendant that the production of this metadata would be overly burdensome with no corresponding evidentiary value.

Mich. First Credit Union v. Cumis Ins. Society, Inc., 2007 WL 4098213 (E.D. Mich. Nov. 16, 2007)

Case Blurb: Cumis Ins. Society, Inc; Rule 34 and metadata

Although Rule 34 speaks of “data compilations,” it does not explicitly reference or require the production of metadata. The Rule does indicate that a request for electronic discovery may specify the form of production, and that if a particular form is not specified, information must be produced “either in a form or forms in which it is ordinarily maintained, or in a form or forms that are reasonably usable.” Rule 34(b)(ii).

Mich. First Credit Union v. Cumis Ins. Society, Inc., 2007 WL 4098213 (E.D. Mich. Nov. 16, 2007).

Case Blurb: Scotts Co.; Forensic Copies not required by amended FRCP

The 2006 amendments to Rule 34 of the Federal Rules of Civil Procedure simply clarify “that discovery of electronically stored information stands on equal footing with discovery of paper documents.” Fed.R.Civ.P. 34 Advisory Committee’s Note on 2006 Amendments. Consequently, without a qualifying reason, plaintiff is no more entitled to access to defendant’s electronic information storage systems than to defendant’s warehouses storing paper documents.

The discovery process is designed to be extrajudicial, and relies upon the responding party to search his records to produce the requested data. In the absence of a strong showing that the responding party has somehow defaulted in this obligation, the court should not resort to extreme, expensive, or extraordinary means to guarantee compliance. Imaging of computer hard drives is an expensive process, and adds to the burden of litigation for both parties, as an examination of a hard drive by an expert automatically triggers the retention of an expert by the responding party for the same purpose. Furthermore, as noted above, imaging a hard drive results in the production of massive amounts of irrelevant, and perhaps privileged, information. Courts faced with this inevitable prospect often erect complicated protocols to screen out material that should not be part of discovery. See, e.g., Playboy Enters., 60 F.Supp.2d [1050, 1054 (S.D.Cal.1999) (appointing court’s expert to conduct examination). Again, this adds to the expense and complexity of the case.
This court is therefore loathe to sanction intrusive examination of an opponent’s computer as a matter of course, or on the mere suspicion that the opponent may be withholding discoverable information. Such conduct is always a possibility in any case, but the courts have not allowed the requesting party to intrude upon the premises of the responding party just to address the bare possibility of discovery misconduct.

The Scotts Co. v. Liberty Mutual Ins. Co., 2007 WL 1723509 (S.D. Ohio June 12, 2007) (quoting with approval Diepenhorst v. City of Battle Creek, 2006 U.S. Dist. LEXIS 48551, *10-11 (W.D. Mich. June 30, 2006).)

Case Summary: Powers; Counsel’s impatience with adversary grounds for denial of motion for sanctions

In a case in which a law school was accused of failing to grant a student with visual disabilities reasonable accommodations in compliance with a state act, plaintiff’s counsel’s request, during oral arguments concerning defendant law school’s compliance with a production order issued by the court, that his expert be allowed to examine the school’s work order tracking system was denied by the court. Plaintiff’s counsel had not requested access to the system in his brief. Plaintiff’s counsel had also failed to abide by local and federal rules by making his motion before making a reasonable attempt to confer with defendant. Counsel had sent defense counsel a fax requesting information on September 18, 2006. At 2:34 p.m. on the same day, Plaintiff’s counsel called defense counsel’s office and was told that defense counsel was not in the office. Plaintiff left a voice-mail, and then filed a motion with the court at 4:23 p.m.

The court found that by allowing defense counsel “less than one business day,” that defense counsel had been given an “unreasonable time” in which to respond. Furthermore, Plaintiff’s counsel had “displayed impatience” and had not displayed “a good-faith effort to resolve [this particular] discovery dispute.” This failure, in and of itself, was grounds for denial of the motion and imposition of sanctions. Powers v. Thomas M. Cooley Law School, 2006 WL 2711512 (W.D. Mich. 2006).

Case Blurb; Easton Sports; Dismissal an extreme sanction

Justice requires that any sanction imposed be proportionate to the circumstances. Dismissal of a claim or defense is an extreme sanction and should be imposed only in extreme situations where there is evidence of willfulness, bad faith, or substantial fault by a non-complying party. Easton Sports, Inc. v. Warrior Lacrosse, Inc., 2006 WL 2811261 (E.D. Mich. 2006).

Case Blurb: Easton Sports; Closing Yahoo! account violated duty to preserve

Defendant alleged to have stolen trade secrets before changing jobs found by court to have violated the duty to preserve relevant evidence after he closed his Yahoo! account, causing the destruction of all e-mails in that account and the loss of messages he had sent to that account while employed by plaintiff. The magistrate recommended that the Court allow:

• Plaintiff to present evidence of Defendant’s failure to preserve the documents to the jury;
• An instruction to the jury that it may presume, based upon the spoliation, that the evidence destroyed would have been favorable to Plaintiff;
• Plaintiff’s counsel to argue in favor of the negative inference.

Easton Sports, Inc. v. Warrior Lacrosse, Inc., 2006 WL 2811261 (E.D. Mich. 2006).

Case Blurb: Ed Donnelly Ents., Inc.; Relationship between adverse inference instruction and records practices examined

Plaintiff’s perception of the deficiencies of defendants’ electronic record-keeping is irrelevant to the request for an adverse inference instruction for the intentional loss or destruction of records after defendants received notice of this litigation and is not a basis for inferring that defendants intentionally lost or destroyed [the document] at issue. O’Brien v. Ed Donnelly Ents., Inc., 2006 WL 2583327 (S.D. Ohio).

Case Blurb: Ed Donnelly Ents., Inc.; Denying request for Adverse Inference Instruction

Plaintiffs request for an adverse inference instruction based on defendant’s failure to produce evidence was denied by the court because the destruction of evidence made before notice of litigation did not provide the court with any foundation to infer that the missing evidence was adverse to defendant. O’Brien v. Ed Donnelly Ents., Inc., 2006 WL 2583327 (S.D. Ohio) (citing Joostberns v. United Parcel Servs., Inc., 166 Fed. Appx. 783, 796 (6th Cir. 2006)).

Case Blurb: Easton Sports; Test for Prejudice on altered or destroyed evidence

The test for prejudice is whether there is a reasonable possibility, based upon concrete evidence, that access to the destroyed or altered evidence, which is not otherwise obtainable, would produce evidence favorable to the objecting party. Easton Sports, Inc. v. Warrior Lacrosse, Inc., 2006 WL 2811261 (E.D. Mich. 2006) (citing Nationwide Mutual Fire Insurance Company v. Ford Motor Company, 174 F.3d 801, 804 (6th Cir. 1999)).

Case Blurb: Ed Donnelly Ents., Inc.; Inherent authority to govern process given to courts w/o regard to FRCP

Fed. Courts possess inherent authority to sanction bad-faith conduct w/o regard to whether such conduct could be sanctioned under other applicable rules or statutes. O’Brien v. Ed Donnelly Ents., Inc., 2006 WL 2583327 (S.D. Ohio).

Determination of the correct sanction for discovery misconduct is left to the broad discretion of the trial court. Id. (citing Nat’l Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 642 (1976)).